G.R. No.
75886 August 30, 1988 deeds of sale both entitled "Kasulatan ng Bilihang Patuluyan" 3 and both duly notarized.
CONCEPCION ROQUE, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT, ERNESTO ROQUE, FILOMENA OSMUNDO,
CECILIA ROQUE, MARCELA ROQUE, JOSE ROQUE and RUBEN ROQUE, respondents.
Lorenzo J. Liwag for petitioner.
Dominador Ad Castillo for private respondents.
FELICIANO, J.:
The subject of the present Petition for Review is the 31 July 1986 Decision of the former
Intermediate Appellate Court in AC-G.R. CV No. 02248 (entitled, "Concepcion Roque,
plaintiff-appellee, vs. Ernesto Roque, Filomena Osmunda Cecilia Roque, Marcela Roque,
Jose Roque and Ruben Roque, defendants-appellants") which reversed and set aside on
appeal the decision of the Regional Trial Court of Malolos, Branch 9.
The controversy here involves a 312 square meter parcel of land situated in San Juan,
Malolos, Bulacan and designated as Lot No. 1549 of the Cadastral Survey of Malolos. The
property was registered originally in the name of Januario Avendaño, a bachelor who died
intestate and without issue on 22 October 1945.
On 21 September 1959, the intestate heirs of Januario Avendafio executed a document
entitled "Paghahati at Pagtagabuyan ng Mana sa Labas ng Hukuman." 1 Through this
instrument, extrajudicial partition of Lot No. 1549 was effected among the intestate heirs
as follows:
a. One-fourth (1/4) undivided portion to Illuminada Avendaño.
b. One-fourth (1/4) undivided portion to Gregorio Avendafio and Miguel Avendaño.
c. One-fourth (1/4) undivided portion to Bernardino, Bienvenido, Numeriano and Rufina,
all surnamed Avendaño.
d. One-fourth (1/4) undivided portion to respondent Emesto Roque and Victor Roque. 2
On 28 September 1959, co-owners Illuminada, Gregorio, Miguel, Bernardino, Bienvenido,
Numeriano and Rufina, all surnamed Avendaño, in consideration of the aggregate amount
of P500.00, transferred their collective and undivided threefourths (3/4) share in Lot No.
1549 to respondent Ernesto Roque and Victor Roque, thereby vesting in the latter full and
complete ownership of the property. The transactions were embodied in two (2) separate
Subsequently, in an unnotarized "Bilihan Lubos at Patuluyan" 4 dated 27 November 1961,
Emesto and Victor Roque purportedly sold a three-fourths (3/4) undivided portion of Lot
No. 1549 to their half-sister, petitioner Concepcion Roque, for the same amount. The
property, however, remained registered in the name of the decedent, Januario Avendaño.
Upon the instance of petitioner Concepcion Roque and allegedly of respondent Ernesto
Roque, Lot No. 1549 was surveyed on 20 September 1975. Consequent thereto, a
Subdivision Plan 5 was drawn up by the Geodetic Engineer Identifying and delineating a
one-fourth (1/4) portion (78 square meters) of the property as belonging to respondent
Ernesto Roque and Victor Roque (who had died on 14 April 1962), upon the one hand,
and a three-fourths (3/4) portion (234 square meters) of the same property as belonging
to petitioner Concepion Roque, upon the other hand. Petitioner claimed that preparation
of the Subdivision Plan, which was approved on 3 November 1975 by the Land
Registration Commission was a preliminary step leading eventually to partition of Lot No.
1549, partition allegedly having been previously agreed upon inter se by the co-owners.
Respondents Ernesto Roque and the legal heirs of Victor Roque, however, refused to
acknowledge petitioner's claim of ownership of any portion of Lot No. 1549 and rejected
the plan to divide the land.
Attempts at amicable settlement having fallen through, petitioner Concepcion Roque, on
6 December 1977, filed a Complaint for "Partition with Specific Performance" 6 (docketed
as Civil Case No. 5236-M) with Branch 2 of the then Court of First Instance of Malolos
against respondents Emesto Roque and the heirs of Victor Roque. In her complaint,
petitioner (plaintiff below) claimed legal ownership of an undivided threefourths (3/4)
portion of Lot No. 1549, by virtue of the 27 November 1961 "Bilihan Lubos at Patuluyan"
executed in her favor by Emesto Roque and Victor Roque. In support of this claim,
petitioner also presented an undated and unnotarized "Kasulatang Pagkilala sa Bilihan
Patuluyan ng Bahagui at Pagmamana sa Labas ng Hukuman at Paghahati-hati at Abuyan
ng Bahagui" 7said to have been signed by the respondents in acknowledgment of the
existence and validity of the Bilihan in favor of petitioner. Finally, petitioner alleged that,
as a coowner of Lot No. 1549, she had a right to seek partition of the property, that she
could not be compelled to remain in the coownership of the same.
In an Answer with Compulsory Counterclaim 8 filed on 28 December 1977, respondents
(defendants below) impugned the genuineness and due execution of the "Bilihan Lubos
at Patuluyan" dated 27 November 1961 on the ground "that the signatures appearing
thereon are not the authentic signatures of the supposed signatories ...." It was also
alleged that petitioner Concepcion Roque, far from being a co-owner of Lot No. 1549,
"occupied a portion of the lot in question by mere tolerance of the [defendants]."
Respondents also refused to honor the unnotarized Kasulatan and, additionally, denied
having had any participation in the preparation of the Subchvision Plan.
1
On 27 June 1983, the trial court (now Branch 9, Regional Trial Court of Malolos) rendered
a Decision, 9 the dispositive portion of which read:
WHEREFORE, judgment is hereby rendered, in favor of the plaintiff and against the
defendants;
1. Ordering the heirs of the late Victor Roque namely Filomena Osmunda his spouse, his
children, Cecilia Roque, Marcela Roque, Jose Roque and Ruben Roque and their uncle and
co-defendant Emesto Roque, to execute a deed of confirmation of the sale made by
Emesto and Victor Roque in favor of plaintiff Concepcion Roque, entitled "Bilihan Lubos
at Patuluyan," executed on November 27, 1961, Exh. E, over the 3/4 portion of the subject
property;
2. Ordering the partition of the parcel of land described in par. 3 of tie complaint covered
by Original Certificate of Title No. 1442 Bulacan issued in the name of Januario Avendafio,
in the proportion of 3/4 to pertain to Concepcion Roque, and 1/4 to pertain to Emesto
Roque and his co- defendants, his sister-in-law, nephews and nieces, in accordance with
the approved subdivision plan (LRC Psd-230726).
3. Ordering defendants,jointly and severally, to pay to plaintiff the sum of P2,000.00 as
and for attomey's fees and the costs of suit.
SO ORDERED.
The respondents appealed from this decision alleging the following errors:
I decision appears to imply that from the moment respondents (defendants below) alleged
The lower court erred when it decided and ordered defendantsappellants to execute a
confirmation of the "Bilihan Lubos at Patuluyan," Exh. "E."
II
The lower court erred when it decided and ordered the defendantsappellant,s to deliver
unto the plaintiff [a] 3/4 share of the land in question.
III
The lower court erred in deciding this case in favor of the plaintiff-appellee, based on an
unnotarized and forged signature of defendantappellant Ernesto Roque.
IV
The lower court erred in giving credence to the testimony of the plaintiff-appellee
Concepcion Roque despite [its] gross inconsistencies. 10
Acting on the appeal (docketed as A.C.-G.R. CV No. 02248), the Intermediate Appellate
Court, in a Decision 11dated 31 July 1986, reversed the judgment of the trial court and
dismissed both the petitioner's complaint and the respondents' appeal. A Motion for
Reconsideration of petitioner Concepcion Roque was denied.
The present Petition for Review was filed with this Court on 18 September 1986. In a
resolution dated 27 July 1987, we gave due course to the Petition and required the parties
to submit their respective Memoranda.
1. On the matter of dismissal of petitioner's complaint, the Intermediate Appellate Court
stated in its decision:
While the action filed by the plaintiff is for partition, the defendantz, after denying
plaintiff's assertion of co-ownership, asserted that they are the exclusive and sole owners
of the 314 portion of the parcel of land claimed by the plaintiff.
Upon the issue thusjoined by the pleadings, it is obvious that the case has become one
ofownership of the disputed portion of the subject lot.
It is well settled that an action for partition will not prosper as such from the moment an
alleged co-owner asserts an adverse title. The action that may be brought by an aggrieved
co-owner is accion reivindicatoria or action for recovery of title and possession (Jardin vs.
Hallasgo, 11 7 SCRA 532, 536, 537; Paner vs. Gaspar, 3 CA Rep. 155, 158). (Emphasis
supplied)
Viewed in the light of the facts of the present case, the Intermediate Appellate Court's
absolute and exclusive ownership of the whole of Lot No. 1549 in their Answer, the trial
court should have immediately ordered the dismissal of the action for partition and
petitioner (plaintiff below), if she so desired, should have refiled the case but this time as
an accion reinvindicatoria. Taking this analysis a step further should the reivindicatory
action prosper — i.e., a co-ownership relation is found to have existed between the
parties — a second action for partition would still have to be instituted in order to effect
division of the property among the co-owners.
We do not agree with the above view. An action for partition-which is typically brought
by a person claiming to be co-owner of a specified property against a defendant or
defendants whom the plaintiff recognizes to be co-owners — may be seen to present
simultaneously two principal issues. First, there is the issue of whether the plaintiff is
indeed a co-owner of the property sought to be partitioned. Second, assuming that the
plaintiff successfully hurdles the first issue, there is the secondary issue of how the
property is to be divided between plaintiff and defendant(s) — i.e., what portion should
go to which co-owner.
2
Should the trial court find that the defendants do not dispute the status of the plaintiff as
co-owner, the court can forthwith proceed to the actual partitioning of the property
involved. In case the defendants assert in their Answer exclusive title in themselves
adversely to the plaintiff, the court should not dismiss the plaintiffs action for partition
but, on the contrary and in the exercise of its general jurisdiction, resolve the question of
whether the plaintiff is co-owner or not. Should the trial court find that the plaintiff was
unable to sustain his claimed status as co-owner, or that the defendants are or have
become the sole and exclusive owners of the property involved, the court will necessarily
have to dismiss the action for partition. This result would be reached, not because the
wrong action was commenced by the plaintiff, but rather because the plaintiff having
been unable to show co-ownership rights in himself, no basis exists for requiring the
defendants to submit to partition the property at stake. If, upon the other hand, the court
after trial should find the eidstence of co-ownership among the parties litigant, the court
may and should order the partition of the property in the same action. Judgment for one
or the other party being on the merits, the losing party (respondents in this case) may
then appeal the same. In either case, however, it is quite unnecessary to require the
plaintiff to file another action, separate and independent from that for partition originally
instituted. Functionally, an action for partition may be seen to be at once an action for
declaration of coownership and for segregation and conveyance of a determinate portion
of the property involved. This is the import of our jurisprudence on the matter. 12 and is
sustained by the public policy which abhors multiplicity of actions.
The question of prescription also needs to be addressed in this connection. It is
sometimes said that "the action for partition of the thing owned in common (actio
communi dividendo or actio familiae erciscundae) does not prescribe." 13 This statement
bears some refinement. In the words of Article 494 of the Civil Code, "each co-owner may
demand at any time the partition of the thing owned in common, insofar as his share is
concemed." No matter how long the co-ownership has lasted, a co-owner can always opt
out of the co-ownership, and provided the defendant co-owners or co-heirs have
theretofore expressly or impliedly recognized the co-ownership, they cannot set up as a
defense the prescription of the action for partition. But if the defendants show that they
had previously asserted title in themselves adversely to the plaintiff and for the requisite
period of time, the plaintiffs right to require recognition of his status as a co-owner will
have been lost by prescription and the court cannot issue an order requiring partition.
This is precisely what happened in Jardin v. Hallasgo, 117 SCRA 532 (1982), which the
respondent appellate court cited to support its position quoted above.
The case of Jardin involved, among others, two (2) parcels of land which were inherited
in 1920 by the brothers Catalino jardin and Galo Jardin together with their half-brother,
Sixto Hallasgo. The three (3) held these lands in co-ownership until Sixto later (the date
was not specified) repudiated the coownership and occupied and possessed both parcels
of land, claiming the same exclusively as his own. Sometime in 1973, the heirs of Catalino
and Galo instituted an action for partition of the two (2) properties against Sixto's heirs,
who had refused to surrender any portion of the same to the former. The trial court,
assuming that prescription had started to run in that case even before the Civil Code took
effect, held that the action for partition filed by the heirs of Catalino and Galo had already
prescribed. On appeal, this Court affirmed the trial court on this point in the following
terms:
Article 494 of the Civil Code provides that "no co-owner shall be obliged to remain in the
co- ownership" and that "each co-owner may demand at any time the partition of the
thing owned in common, insofar as his share is concerned." It also provides that 'no
prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs
so long as he expressly or impliedly recognizes the co-ownership.
While the action for the partition of the thing owned in common (actio communi
dividendo or actio familiae erciscundae) does not prescribe, the co-ownership does not
last forever since it may be repudiated by a co-owner [i.e., Sixto]. In such a case, the action
for partition does not lie. What may be brought by the aggrieved co-owner [i.e., the heirs
of Catalino and Galo] is an accion reivindicatoria or action for recovery of title and
possession. That action may be barred by prescription.
If the co-heir or co-owner having possession of the hereditary or community property,
holds the same in his own name, that is, under claim of exclusive ownership, he may
acquire the property by prescription if his possession meets all the other requirements of
the law, and after the expiration of the prescriptive period, his co-heir or co-owner may
lose their right to demand partition, and their action may then be held to have prescribed
(De los Santos vs. Santa Teresa, 44 Phil. 811).
xxx xxx xxx
(Emphasis supplied)
In the light of the foregoing discussion, it will be seen that the underscored portion of the
Court's opinion in Jardin is actually obiter. For there, the Court simply held the action for
partition by the heirs of Catalino and Galo had prescribed and did not require such heirs
to start a new action (which would have been quite pointless); on the other hand, the
Court remanded the case to the lower court for further proceedings in respect of the
recovery of a 350 square meter lot which the evidence showed was owned by the
plaintiffs but wrongfully included by Sixto in the cadastral survey of his share of the
adjoining lot.
In Jardin, the claim of co-ownership asserted by the heirs of Catalino and Galo was
effectively refuted by the heirs of Sixto, who not only claimed for themselves absolute
3
and exclusive ownership of the disputed properties but were also in actual and adverse
possesion thereof for a substantial length of time. The Court found, further, that the
action for partition initially available to the heirs of Catalino and Galo had, as a result of
the preceding circumstance, already prescribed.
An entirely different situation, however, obtains in the case at bar. First of all, petitioner
Concepcion Roque-the co-owner seeking partition — has been and is presently in open
and continuous possession of a three-fourths (3/4) portion of the property owned in
common. The Court notes in this respect the finding of the trial court that petitioner,
following execution of the "Bilihan Lubos at Pattlluyan" on 27 November 1961, had been
in "continuous occupancyof the 3/4 portion of the lot ... up to the present, and whereon
plaintifrs house and that of her son are erected. " 14Respondents do not dispute this
finding of fact, although they would claim that petitioner's possession is merely tolerated
by them. Second, prior to filing in 1977 of the Complaint in Civil Case No. 5236-M, neither
of the parties involved had asserted or manifested a claim of absolute and exclusive
ownership over the whole of Lot No. 1549 adverse to that of any of the other co-owners:
in other words, co-ownership of the property had continued to be recognized by all the
owners. Consequently, the action for partition could not have and, as a matter of fact,
had not yet prescribed at the time of institution by Concepcion of the action below.
longer dispute the existence of the co-ownership between petitioner and themselves nor
the validity of petitioner's claim of a threefourths (3/4) interest in Lot No. 1549, as they
are deemed, by their unreasonably long inaction, to have acquiesced in the
coow,aership. 15 In this respect, we affirm the decision of the respondent appellate court
presently under review.
WHEREFORE, the Decision of the Intermediate Appellate Court dated 31 July 1986 in A.C.-
G.R. CV No. 02248 is SET ASIDE with respect to that portion which orders the dismissal of
the Complaint in Civil Case No. 5236-M, but is AFFIRMED with respect to that portion
which orders the dismissal of the respondents'appeal in A.C.-G.R. CV No. 02248. The
Decision of Branch 9 of the Regional Trial Court of Malolos dated 27 June 1983 in Civil
Case No. 5236-M is hereby REINSTATED. No pronouncement as to costs.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr. and Cortes, JJ., concur.
Bidin, J., took no part.

2. Coming now to the matter regarding dismissal of the respondents'appeal, the

Intermediate Appellate Court held that inasmuch as the attack on the validity of the
"Bilihan Lubos at Patuluyan" was predicated on fraud and no action for annulment of the
document had been brought by respondents within the four (4) year prescriptive period
provided under Article 1391 of the Civil Code, such action had already prescribed.

We find it unnecessary to deal here with the issue of prescription discussed by the
respondent court in its assailed decision. The facts on record clearly show that petitioner
Concepcion Roque had been in actual, open and continuous possession of a three-fourths
(3/4) portion of Lot No. 1549 ever since execution of the "Bilihan Lubos at Patuluyan" in
November of 1961. The Court notes that it was only in their Answer with Compulsory
Counterclaim filed with the trial court in December of 1977 — more than sixteen (16)
years later — that respondents first questioned the genuineness and authenticity of the
"Bilihan Lubos at Patuluyan." Not once during those sixteen (16) years did respondents
contest petitioner's occupation of a three-fourths (3/4) portion of Lot No. 1549.
Furthermore, if indeed it is true that respondents, as they claim, are the absolute owners
of the whole of Lot No. 1549, it is most unusual that respondents would have allowed or
tolerated such prolonged occupation by petitioner of a major portion (3/4) of the land
while they, upon the other hand, contented themselves with occupation of only a fourth
thereof. This latter circumstance, coupled with the passage of a very substantial length of
time during which petitioner all the while remained undisturbed and uninterrupted in her
occupation and possession, places respondents here in laches: respondents may no
4
[G.R. No. 129017. August 20, 2002]
CONCEPCION V. VDA. DE DAFFON, petitioner, vs. THE HONORABLE COURT OF APPEALS,
LOURDES OSMEA VDA. DE DAFFON, AILEEN DAFFON, JOSELITO DAFFON, JR., ANA
VANESA DAFFON, LEILA DAFFON and SUZETTE DAFFON, respondents.
DECISION
YNARES-SANTIAGO, J.:
Petitioner Concepcion Villamor was married to the late Amado Daffon, with whom she
begot one son, Joselito Daffon. Joselito married Lourdes Osmea, and they bore six
children, namely, Aileen, Joselito Jr., Ana Vanesa, Leila, Julius and Suzette.
Amado passed away on January 21, 1982. His son, Joselito, died on October 25, 1990.
On January 21, 1994, respondents Lourdes Osmea Vda. De Daffon, together with her six
minor children, instituted an action for partition against petitioner Concepcion Villamor
Vda. de Daffon, which case was docketed as Civil Case No. DNA-281 of the Regional Trial
Court of Danao City, Branch 25.[1] Respondents alleged that Amado left several real and
personal properties which formed part of his conjugal partnership with
petitioner. Joselito being a forced heir of Amado was entitled to at least one half of
Amados estate, consisting of his share in the said conjugal properties. However, the said
properties were never partitioned between petitioner and Joselito. After Joselitos death,
petitioners behavior towards respondents, her daughter-in-law and grandchildren,
changed. She claimed absolute ownership over all the properties and deprived them of
the fruits thereof. Thus, respondents prayed that the conjugal properties of Amado
Daffon and petitioner be partitioned and that the one-half share of Amado be further
partitioned between petitioner, on one hand, and the respondents as heirs of Joselito
Daffon, on the other hand.
Petitioner filed a Motion to Dismiss on the grounds of (1) lack of jurisdiction over the
subject matter of the case; (2) failure of the complaint to state a cause of action; and (3)
waiver, abandonment and extinguishment of the obligation.[2] She argued that the trial
court cannot take cognizance of the action for partition considering her claim of absolute
ownership over the properties; and that respondents themselves admitted that
petitioner has repudiated the co-ownership. Anent the third ground, petitioner alleged
that Joselito Daffon filed a complaint against Milagros Marin, who was likewise married
to Amado Daffon, for recovery of a parcel of land in Mandaluyong.[3] In said complaint,
respondent Lourdes Osmea Vda. de Daffon allegedly admitted that the land sought was
the only property of the late Amado Daffon.
In an Order dated July 22, 1994, the trial court denied the Motion to Dismiss.[4] Petitioner
filed a motion for reconsideration which was also denied on September 23, 1994.[5]
On October 25, 1994, petitioner filed a petition for certiorari with the Court of Appeals,
docketed as CA-G.R. SP No. 35536. On November 14, 1996, the Court of Appeals rendered
the assailed decision denying due course and dismissing the petition for
certiorari.[6] Petitioners motion for reconsideration was denied in the Resolution dated
April 21, 1997.[7]
The case is now before us on petition for review, based on the following issues:
I
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PRIVATE
RESPONDENTS NEED NOT BE ACKNOWLEDGED AS HEIRS OF THE DECEASED AMADO
DAFFON.
II
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT IT IS NOT
NECESSARY THAT PRIVATE RESPONDENTS BE THE REGISTERED OWNERS OF THE
PROPERTIES CLAIMED IN THE ACTION FOR PARTITION.
III
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE TRIAL
COURT IS NOT REQUIRED TO TAKE JUDICIAL NOTICE OF ANOTHER CASE PENDING IN
ANOTHER COURT.
IV
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT THE TRIAL
COURTS DENIAL OF PETITIONERS MOTION TO DISMISS THE COMPLAINT BASED ON
FAILURE TO STATE A CAUSE OF ACTION IS REVIEWABLE BY THE SPECIAL CIVIL ACTION OF
CERTIORARI.[8]
There is no merit in the petition.
It should be stressed that in the determination of whether a complaint fails to state a
cause of action, only the statements in the complaint may be properly
considered.[9] Moreover, a defendant who moves to dismiss the complaint on the ground
of lack of cause of action hypothetically admits all the averments thereof. The test of
sufficiency of the facts found in a complaint as constituting a cause of action is whether
or not admitting the facts alleged the court can render a valid judgment upon the same
in accordance with the prayer thereof. The hypothetical admission extends to the
5
relevant and material facts well pleaded in the complaint and inferences fairly deducible
therefrom. Hence, if the allegations in the complaint furnish sufficient basis by which the
complaint can be maintained, the same should not be dismissed regardless of the defense
that may be assessed by the defendants.[10]
In the case at bar, the complaint sufficiently alleged that defendant (i.e., petitioner
herein) was married to Amado Quiros Daffon and that they begot an only son in Joselito
Daffon.[11] The complaint further alleged that Joselito Daffon later got married to herein
plaintiff Lourdes Osmea and before the former died on October 25, 1990 he sired the six
(6) children who are now plaintiffs with their mother.[12] This, to our mind, was sufficient
allegation that Joselito Daffon was a legitimate son of the spouses Amado and Concepcion
Daffon; and that plaintiffs (i.e.,respondents herein) were likewise legitimate heirs of
Joselito Daffon. Admitting the truth of these averments, there was, therefore, no need to
inquire whether respondent minor children were duly acknowledged by the deceased
Amado Daffon. To be sure, the illegitimacy of the said children and the lack of
acknowledgment are matters which petitioner may raise as a defense in her answer and
threshed out by the court during a full-blown trial.
In the same vein, there is no need for the complaint to specifically allege respondents
claim of co-ownership of the properties. The complaint needs only to allege the ultimate
facts on which the plaintiffs rely for their claim.[13]
The rules of procedure require that the complaint must make a concise statement of the
ultimate facts or the essential facts constituting the plaintiffs cause of action. A fact is
essential if it cannot be stricken out without leaving the statement of the cause of action
inadequate. A complaint states a cause of action only when it has its three indispensable
elements, namely: (1) a right in favor of the plaintiff by whatever means and under
whatever law it arises or is created; (2) an obligation on the part of the named defendant
to respect or not to violate such right; and (3) an act or omission on the part of such
defendant violative of the right of plaintiff or constituting a breach of the obligation of
defendant to the plaintiff for which the latter may maintain an action for recovery of
damages.[14]
The allegations contained therein are sufficient to establish respondents right to the
estate of Amado Daffon. By stating their relationship to the deceased, they established
their line of succession as the basis for their claim. Their rights to succeed as heirs were
transmitted from the moment of death of the decedent.[15]
Contrary to petitioners contention, the fact that she repudiated the co-ownership
between her and respondents did not deprive the trial court of jurisdiction to take
cognizance of the action for partition. In a complaint for partition, the plaintiff seeks, first,
a declaration that he is a co-owner of the subject properties; and second, the conveyance
of his lawful shares.[16] As the Court of Appeals correctly held, an action for partition is at
once an action for declaration of co-ownership and for segregation and conveyance of a
determinate portion of the properties involved. If the defendant asserts exclusive title
over the property, the action for partition should not be dismissed. Rather, the court
should resolve the case and if the plaintiff is unable to sustain his claimed status as a co-
owner, the court should dismiss the action, not because the wrong remedy was availed
of, but because no basis exists for requiring the defendant to submit to partition. If, on
the other hand, the court after trial should find the existence of co-ownership among the
parties, the court may and should order the partition of the properties in the same
action.[17]
An action for partition is comprised of two phases: first, an order for partition which
determines whether a co-ownership in fact exists, and whether partition is proper; and,
second, a decision confirming the sketch or subdivision submitted by the parties or the
commissioners appointed by the court, as the case may be. The first phase of a partition
and/or accounting suit is taken up with the determination of whether or not a co-
ownership in fact exists, (i.e., not otherwise legally proscribed) and may be made by
voluntary agreement of all the parties interested in the property. This phase may end with
a declaration that plaintiff is not entitled to have a partition either because a co-
ownership does not exist, or partition is legally prohibited. It may end, upon the other
hand, with an adjudgment that a co-ownership does in truth exist, partition is proper in
the premises and an accounting of rents and profits received by the defendant from the
real estate in question is in order. In the latter case, the parties may, if they are able to
agree, make partition among themselves by proper instruments of conveyance, and the
court shall confirm the partition so agreed upon.[18]
Petitioner insists that in her testimony given in Civil Case No. 56336, respondent Lourdes
Daffon admitted that the land in Mandaluyong was the only property left by the deceased
Amado Daffon. The pertinent portion of her testimony runs this way:
Q And because of that incident being the surviving spouse of Joselito Daffon, how did it
affect you personally and also your husband at that time when he was still alive?
A She (sic) felt sad and she (sic) suffered mental torture, mental anxiety and numerous
sleepless nights for that is the only property left to us by my father-in-law and his son and
his grandchildren.[19]
We do not agree with petitioners interpretation of the above phrase. The foregoing
statement, saying that the deceased only left the said Mandaluyong property to his son
Joselito, does not exclude the possibility that Amado owned other land and personal
belongings during his lifetime, which he may not have left to his son. This does not deprive
Joselito or his successors-in-interest of the right to share in those other properties. As a
6
matter of fact, respondents complaint contains a long list of properties allegedly owned
by Amado Daffon.[20] Again, the resolution of whether or not these belonged to Amado
Daffon and formed part of his estate is a matter best taken up during trial and after an
evaluation of the evidence to be presented by the contending parties.

Petitioner argues that the order which denied the Motion to Dismiss is an interlocutory
order which is not appealable. Hence, it may be the subject of a special civil action for
certiorari.However, for certiorari to lie, it must be convincingly proved that the lower
court committed grave abuse of discretion, or an act too patent and gross as to amount
to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in
contemplation of law; or that the trial court exercised its power in an arbitrary and
despotic manner by reason of passion and personal hostility.[21] In the case at bar, the trial
court did not commit grave abuse of discretion in denying petitioners Motion to
Dismiss. Thus, the Court of Appeals was correct in dismissing the petition for certiorari.

We are indeed distressed by the circumstances under which the instant case reached this
Court. Instead of filing an answer and meeting the issues head-on, petitioner and her
counsel chose to elevate the incident of the denial of the Motion to Dismiss to the higher
courts. In doing so, they effectively delayed the resolution of the case and the
adjudication of the respective rights of the parties by the court below. What makes this
case more reprehensible is that petitioner abused the legal process to delay her own
grandchildrens expectancy to share in the estate left by their father and grandfather. If
there is any merit in her claim of absolute ownership over the contested properties, she
could have just allowed the case to be fully tried, during which she should have proved
her case with competent proof. While litigants may utilize all available means to defend
themselves, the legal strategies they employ should not amount to machinations which
frustrate and prejudice the rights of others. Moreover, frivolous appeals, such as the one
filed in this case, are not countenanced in this jurisdiction.

WHEREFORE, in view of the foregoing, the instant petition is DENIED. The decision of the
Court of Appeals in CA-G.R. SP No. 35536 is AFFIRMED.

SO ORDERED.

Vitug, and Austria-Martinez, JJ., concur.

Davide, Jr., C.J., (Chairman), on official leave.

7
G.R. L-47360 December 15, 1986
PETRA FABRICA, EUGENIO BAS, PETRONA BAS, ANTONIO BAS, VICENTE BAS, FLAVIANA
BAS, JOSEFINA BAS, NUMERIANA BAS, PASCUAL ZAFRA, MARCIAL BAS, RUFINA LAREGO,
FAUSTA OBEJERO, TEOFILO TABAY, VICTORIA OBEJERO, PEDRO GAHUM, ARSENIO
CANEDA, FAUSTINA BAS, MOISES BAS, and GIL OBEJERO, petitioners,
vs.
HONORABLE COURT OF APPEALS and ZACARIAS BAS, CIPRIANO BAS, ELEUTERIA BAS,
AGUSTIN BAS, ISIDRO OBEJERO, DEMETRIA BAS, JOSE BAS, OSMUNDO BAS, ANDREA
BAS, VIVENCIA BAS, FRANCISCO BAS, ESTELITA BAS, BUENAVENTURA BAS, JUANA BAS,
DOMINGO BAS, DOLORES BAS and DULCE BAS, respondents.
Leonardo Garcillano and Gabriel Roldan for petitioners.
Americo H. Acosta for private respondents.
PARAS, J.:
This is a petition to review on certiorari 1) the decision of the respondent Court of Appeals
in CA-G.R. No. 54374-R, which ordered that the records be remanded to the Court a
quo, holding that the judgment of the latter court is merely interlocutory and 2) the
resolution which denied the motion for reconsideration,
The parties before the hearing in the trial court, submitted the following:
AGREED STIPULATION OF FACTS
COME NOW the plaintiffs and defendants in the above-entitled case, accompanied by
their respective counsels, and to his Honorable Court, most respectfully submitted the
following Agreed Stipulation of Facts:
1. That, except for defendant Petra Fabrica who is the surviving spouse of Pedro Bas, all
the plaintiffs and the other defendants are the grandchildren and/or great grandchildren
of spouses Catalino Bas and Cristeta Niebres, who died in 1916 and 1930, respectively,
leaving six (6) children, namely: Alberto, Andres, Diogracias, Miguel, Pedro and Restituta,
all surnamed Bas, now all deceased.
2. That the said spouses Catalino Bas and Cristeta Niebres during their lifetime possessed
and owned, and, after their deaths, left to their six aforenamed children, eight (8) parcels
of land, situated in Talisay, Cebu, and known as Lots Nos. 2464, 2467 (the lots in question),
2528, 2535, 2542, 2549, 2552 and 4041 of the Talisay-Minglanilla Friar Lands Estate;
3. That the plaintiffs: Zacarias Bas is the only surviving child and only heir of Miguel Bas;
Juana, Domingo, Dolores and Dulce all surnamed Bas, are the only surviving children and
heirs of Alberto Bas; Cipriano, Numeriana Eleuteria, Marcial, Faustina, Agustin and Moises,
all surnamed Bas, and Victoria, Isidro, Gil, and Fausta, all surnamed Obejero, are the only
surviving grandchildren and heirs of Diogracias Bas, by his son Rufino Bas and daughter
Eulogia Bas-Obejero, respectively, both deceased; and Fortunata, Demetria, Jose,
Osmundo, Petrona and Andres, all surnamed Bas, and Vivencia, Estelita, Buenaventura
and Francisco, all surnamed Bas, are surviving children and/or grandchildren and heirs of
Andres Bas;
4. That defendant Petro Fabrica is the surviving widow of Pedro Bas, who died in 1948,
and the other defendants are their only surviving children and heirs;
5. That Lot 2528 was partitioned among the six (6) children of Catalino Bas and Cristeta
Niebres, who received their respective portions, which were given new lot numbers 2528
New, 8498, 9494, 8495, 8496 and 8497;
6. That Catalino Bas and Cristeta Niebres did not leave any last will and testament;
7. That the six surviving children and heirs of Catalino Bas and Cristeta Niebres, and their
(children) successors in interest the plaintiffs and defendants herein, have during their
lifetimes, continuously resided either in Dumlog or Pook, Talisay, Cebu, except the
children and widow of Alberto Bas who moved to Cotabato a few years ago;
8. That Lots 2464 and 2467 in question were originally sold on installments payable in 10
and 18 regular yearly installments by the Talisay-Minglanilla Friar Lands Estate to spouses
Catalino Bas and Cristeta Niebres, and patents Nos. 40190 and 40191, respectively were
issued on November 24, 1936 and December 23, 1936 respectively, the "The Legal Heirs
of Catalino Bas, Pooc, Talisay, Cebu";
9. That Restituta Bas died single and without issue in 1966 at Barrio Dumlog, Talisay, Cebu;
10. That the total assessed value of the above described lots in question is P1,640.00;
Cebu City, Philippines, November . . . 1970.
The trial court ruled that the only issue to be resolved in this case is whether Lots Nos.
2464 and 2467, which are covered by TCT Nos. 17900 and 18122, respectively, registered
in the name of the legal heirs of Catalino Bas, are still owned in common pro-indiviso by
the heirs of Catalino Bas, and Cristeta Niebres, or whether the said lots belong exclusively
to Pedro Bas or his heirs. After trial, the lower court rendered judgment, the dispositive
portion of which reads:
8
IN VIEW OF THE FOREGOING, judgment is hereby rendered declaring Lots Nos. 2464 and
2467 of the Talisay-Minglanilla Friar Lands Estate, covered by Transfer Certificates of Title
Nos. 17900 and 18122, respectively, in the name of the Legal Heirs of Catalino Bas, as
properties still owned in common by the heirs of Catalino Bas and Cristeta Niebres, and
ordering their partition among the children of Catalino Niebres, Alberto, Andres,
Deogracias, Miguel, and Pedro, all surnamed Bas and or their heirs; and further ordering
the defendants Petra Fabrica, Eugenio Bas, Antonio Bas, Flaviana Bas, Vicente Bas, and
Josefina Bas, to pay to the plaintiffs the sum of P1,000.00 by way of attorney's fees, plus
the costs of this action. (Decision, Printed Record on Appeal, p. 86).<äre||anº•1àw>
From said judgment, defendants (petitioners herein) appealed to the Court of Appeals
which ruled that the judgment of the court a quo in the partition case is not appealable,
it being interlocutory, and ordered the remanding of the case to the lower court.
Petitioners now come to Us alleging the following:
ASSIGNMENT OF ERRORS
I that Lots Nos. 2464 and 2467 were given to Pedro Bas while Lot 2528 was given to the six
THE COURT A QUO ERRED WHEN IT FOUND THAT LOTS NOS. 2464 and 2467, WERE NOT
PARTITIONED AND WERE RESERVED FOR CRISTETA NIEBRES AND RESTITUTA BAS WHICH
CONCLUSION WAS BASED ON A LACK OF COMPREHENSIVE APPRECIATION OF THE
ENVIRONMENTAL CIRCUMSTANCES EXPOSED BY THE EVIDENCE OF RECORD, AND
CLEARLY POINTED OUT IN DEFENDANTS' MEMORANDUM.
II
THE COURT A QUO ERRED IN BASING ITS CONCLUSION THAT THE LOTS IN QUESTION
WERE NOT PARTITIONED IN THE TESTIMONY OF DEFENDANTS' WITNESSES, WHOSE
TESTIMONIES SHOULD HAVE BEEN TAKEN IN THE PROPER CONTEXT BASED ON THE
EVIDENCE AS A WHOLE.
III
THE COURT A QUO ERRED WHEN IT DID NOT FIND THAT PEDRO BAS HAD ACTUALLY BEEN
ALLOTTED THE LOTS IN QUESTION BY VIRTUE OF THE PARTITION OF THE LANDS OF
CATALINO BAS AND CRISTETA NIEBRES, BECAUSE IT HAD OVERLOOKED THE
SIGNIFICANCE AND OR HAD MISINTERPRETED THE TOTALITY OF THE EVIDENCE OF
RECORD SHOWING THE JUSTNESS OF SUCH PARTITION.
IV
THE COURT A QUO ERRED WHEN IT RENDERED JUDGMENT AGAINST THE HEREIN
DEFENDANTS AND IN FAVOR OF THE PLAINTIFFS.
Petitioners' contentions merit our consideration. The instant case is for partition of
properties left by the deceased spouses Catalino Bas and Cristeta Niebres filed with the
lower court by private respondents against petitioners. In their amended complaint for
partition filed with the trial court plaintiffs (private respondents herein) alleged among
other things that after the death of Restituta Bas the defendants (Petra Fabrica, surviving
spouse of the late Pedro Bas, and her children, private respondents herein) took
possession of the two (2) parcels of land in question and claimed that they are the owners
thereof; and despite repeated demands for partition made upon them, the defendants
refused and still refuse to partition the same, thereby depriving the plaintiffs of their
shares in the products of the said land notwithstanding the fact that deeds of conveyance
over Lot No. 2464 on November 24, 1936 and over Lot No. 2467 on December 23, 1936
were made in favor of the legal heirs of Catalino Bas as shown in the records of the Office
of the District Land Officer of Cebu under Patents Nos. 40190 and 40191, respectively.
The defendants in their answer as their affirmative defenses alleged among other things
that Pedro Bas took possession of lots Nos. 2464 and 2467 in 1929 after Cristeta Niebres
and her children orally and extrajudicially partitioned the estate left by Catalino Bas, and
children, subject to the usufruct of Cristeta Niebres during her lifetime, and Lots Nos. 2542,
2549, 2552 and 4041 were given to Alberto, Andres, Deogracias, Miguel and Restituta
Bas; and that since 1929 up to the present, they have been in the actual physical, material
and exclusive possession and dominion of the lots in question, declaring same for taxation
and paying the taxes thereon in the name of Pedro Bas, planting them to corn and
coconuts and enjoying the fruits thereof to the exclusion of Restituta Bas and of all others.
The records of the case clearly reveal that the main purpose of the complaint is to
determine who between the parties are the true owners and entitled to the exclusive use
of the disputed properties. While it is true that the complaint is one for partition, it is one
which is premised on the resolution of the issue on the validity of the oral partition
allegedly made in favor of defendants and the two deeds of conveyance executed in the
names of the heirs of the deceased spouses Catalino Bas and Cristeta Niebres. Unless this
issue of ownership is definitely and finally resolved, it would be premature to effect a
partition of the disputed properties. Thus, when the trial court rendered its judgment in
favor of the plaintiffs, rejecting defendants' claim of exclusive ownership of the properties
by oral partition, it rendered a final or definitive judgment on the merits from which the
party adversely affected can make an appeal. (See Miranda, et al. vs. Court of Appeals, et
al., 71 SCRA 295 and Valdez v. Bagaso, 82 SCRA 22, superseding the principles enunciated
in Zaldariaga vs. Enriquez, 1 SCRA 1188.). We held in the Valdez case that-
... Contrary to the holding of the Appellate Court, the decision of the trial court declaring
null the aforesaid conveyances and granting recovery of the properties for the purpose
of ordering their partition is a definitive judgment because it decided the rights of the
9
parties upon the issue submitted. It was not, therefore, an interlocutory order. As this
Court enunciated in Miranda, et al. v. Court of Appeals, et al. supra, a judgment which
grants recovery of the ownership and possession of property in favor of one party as
against the adverse claim of title of the other is in effect a final judgment which is
appealable. In Miranda, this Court considered as the better rule the one enunciated in H.E.
Heacock Co. vs. American Trading Co., 3 to wit; that where the primary purpose of a case
is to ascertain and determine who, as between plaintiff and defendant, is the true owner
and entitled to the exclusive use of the disputed property, the judgment rendered by the
lower court is a judgment on the merits as to those questions, and that the order for an
accounting is merely incidental to such judgment. We explained therein that if said
judgment is merely considered interlocutory subject to the control of the judge, there
would be as many decisions to be taken up on appeal as there were successor judges
inclined to review or reverse his predecessor's judgment. "With none of the parties
adversely affected able to appeal from any of the fluctuating decisions for as long as the
accounting has not been terminated." Such unbriddled power of the Court to change at
will its judgment does violence to the very purpose for which courts are organized which
is to put an end to controversy. This Court adverted to the fact that "imperative
considerations of public policy and of sound practice in the courts and adherence to the
constitutional mandate of simplified, just, speedy, and inexpensive determination of
every action call for considering such judgments for recovery of property with accounting
as final judgments which are duly appealable (and would therefore become final and
executory if not appealed within the reglementary period) with the accounting as a mere
incident of the judgment to be rendered during the course of the appeal as provided in
Rule 39, section 4 or to be implemented at the execution stage upon final affirmance on
appeal of the judgment ... and that the only reason given in Fuentebella for the contrary
ruling, viz, "the general harm that would follow from throwing the door open to
multiplicity of appeals in a single case' is of lesser import and consequence. " 4 We
reiterate the validity of that doctrine and find it clearly applicable in this case. Indeed, it
would be more conducive to the speedy and inexpensive determination of the case, if the
issue of the validity of the two deeds of sale is first finally resolved by the Appellate Court
before the question of partition can be taken up by the trial court. (Emphasis supplied)

WHEREFORE, judgment is hereby rendered SETTING ASIDE the assailed decision of the
respondent Court of Appeals and ordering the same to give due course to petitioners'
appeal and to decide the appeal on the merits. Let the records of the case be remanded
to the Court of Appeals for further proceedings.

SO ORDERED.

Feria (Chairman), Fernan, Alampay and Gutierrez, Jr., JJ., concur.

10